Pub Date : 2024-08-10DOI: 10.32505/qadha.v11i1.9202
Siad Rizal, E. Pakpahan, Reni Amalia, Muhammad Rusdi bin Muhammaddiah
The position of the guardian in marriage is the most important thing in marriage. Because its existence is the reason for the validity of a marriage. The guardians consist of the nasab guardian, the judge guardian (sultan), the muhakkam guardian, and the maula guardian. This research examines the dynamics of unregistered marriages in East Aceh Regency, which are related to who is the guardian in the marriage. How does the muhakkam guardian handle unregistered marriages? What is the legal position of muhakkam guardians as guardians of unregistered marriages? This research aims to answer the problems of muhakkam guardians. This research uses empirical legal methods with a field study approach. Data was obtained by collecting information from primary sources through interviews. The results of the research explain that: first, siri marriage through muhakkam guardians using a cultural approach and Islamic legal studies. Second, the legal position of muhakkam guardians is not regulated in Indonesian legislation, so it cannot be used as a legal basis for carrying out unregistered marriages. Muhakkam guardians tend to be used to legalize sirri marriages, which are very common among the people of East Aceh. Even though it is not recognized by the state, in practice, muhakkam guardians have religious legal power. Sociologically, the presence of muhakkam guardians increases the number of unregistered marriages among the people of East Aceh
{"title":"Legal Position of Muhakkam Guardians in the Practice of Sirri Marriage in Aceh","authors":"Siad Rizal, E. Pakpahan, Reni Amalia, Muhammad Rusdi bin Muhammaddiah","doi":"10.32505/qadha.v11i1.9202","DOIUrl":"https://doi.org/10.32505/qadha.v11i1.9202","url":null,"abstract":"The position of the guardian in marriage is the most important thing in marriage. Because its existence is the reason for the validity of a marriage. The guardians consist of the nasab guardian, the judge guardian (sultan), the muhakkam guardian, and the maula guardian. This research examines the dynamics of unregistered marriages in East Aceh Regency, which are related to who is the guardian in the marriage. How does the muhakkam guardian handle unregistered marriages? What is the legal position of muhakkam guardians as guardians of unregistered marriages? This research aims to answer the problems of muhakkam guardians. This research uses empirical legal methods with a field study approach. Data was obtained by collecting information from primary sources through interviews. The results of the research explain that: first, siri marriage through muhakkam guardians using a cultural approach and Islamic legal studies. Second, the legal position of muhakkam guardians is not regulated in Indonesian legislation, so it cannot be used as a legal basis for carrying out unregistered marriages. Muhakkam guardians tend to be used to legalize sirri marriages, which are very common among the people of East Aceh. Even though it is not recognized by the state, in practice, muhakkam guardians have religious legal power. Sociologically, the presence of muhakkam guardians increases the number of unregistered marriages among the people of East Aceh","PeriodicalId":504558,"journal":{"name":"Al-Qadha : Jurnal Hukum Islam dan Perundang-Undangan","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141920597","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-07-28DOI: 10.32505/qadha.v11i1.8722
Maswandi Maswandi, Wenggedes Frensh, Fitri Yanni Dewi Siregar, Sri Hidayani
This research is grounded in Decision Number: 2939/Pdt.G/2023, wherein the presiding magistrate rendered a verdict of Verstek in his consideration of the case. In such cases, the decision is rendered by the court in the absence of either the defendant or their legal representative. The validity of a verstek verdict in the context of the legitimacy of a marriage may be contingent upon the applicable legislation within the jurisdiction in question; thus, this investigation will consider both positive law and Islamic law. The objective of this article is to undertake a critical analysis of the decision rendered in Decision Number: 2939/Pdt.G/2023, which pertains to the use of a verstek decision to terminate a marriage due to childlessness, followed by disputes and quarrels. This research is a normative legal study with a case-based approach. The principal data source is derived from court decisions in the field of marriage law. The analysis reveals that, in Decision Number: 2939/Pdt.G/2023, a verdict of divorce by verstek is considered valid if the stipulated procedures have been followed correctly and the party who is required to be present or provide a defence does not do so without a valid reason. Islamic law also establishes principles of justice and protection of individual rights, including in the marriage process. Accordingly, the legitimacy of a marriage concluded through a verstek verdict may be contingent upon the interpretation of Islamic schools of thought and the legal principles that are embraced. Likewise, in the context of marriage law in Indonesia, a verstek decision in a verstek divorce case can be recognized as valid if it has fulfilled the requirements stipulated in the law. Thus, to determine whether a verstek decision in a marriage is valid or not, it is necessary to consider the applicable legal context, both in terms of civil law and in terms of Islamic law (fiqh) or the applicable marriage law.
{"title":"State and Fiqh: Examining the Legal Status of Divorce in Verstek Decision Number 2939/Pdt.G/2023/PA.Mdn","authors":"Maswandi Maswandi, Wenggedes Frensh, Fitri Yanni Dewi Siregar, Sri Hidayani","doi":"10.32505/qadha.v11i1.8722","DOIUrl":"https://doi.org/10.32505/qadha.v11i1.8722","url":null,"abstract":"This research is grounded in Decision Number: 2939/Pdt.G/2023, wherein the presiding magistrate rendered a verdict of Verstek in his consideration of the case. In such cases, the decision is rendered by the court in the absence of either the defendant or their legal representative. The validity of a verstek verdict in the context of the legitimacy of a marriage may be contingent upon the applicable legislation within the jurisdiction in question; thus, this investigation will consider both positive law and Islamic law. The objective of this article is to undertake a critical analysis of the decision rendered in Decision Number: 2939/Pdt.G/2023, which pertains to the use of a verstek decision to terminate a marriage due to childlessness, followed by disputes and quarrels. This research is a normative legal study with a case-based approach. The principal data source is derived from court decisions in the field of marriage law. The analysis reveals that, in Decision Number: 2939/Pdt.G/2023, a verdict of divorce by verstek is considered valid if the stipulated procedures have been followed correctly and the party who is required to be present or provide a defence does not do so without a valid reason. Islamic law also establishes principles of justice and protection of individual rights, including in the marriage process. Accordingly, the legitimacy of a marriage concluded through a verstek verdict may be contingent upon the interpretation of Islamic schools of thought and the legal principles that are embraced. Likewise, in the context of marriage law in Indonesia, a verstek decision in a verstek divorce case can be recognized as valid if it has fulfilled the requirements stipulated in the law. Thus, to determine whether a verstek decision in a marriage is valid or not, it is necessary to consider the applicable legal context, both in terms of civil law and in terms of Islamic law (fiqh) or the applicable marriage law.","PeriodicalId":504558,"journal":{"name":"Al-Qadha : Jurnal Hukum Islam dan Perundang-Undangan","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-07-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141797131","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-07-23DOI: 10.32505/qadha.v11i1.8591
Andi Hakim Lubis, Ariman Sitompul, Serimin Pinem, Rizkan Zulyadi, Fahrizal S. Siagian
This study was conducted to examine a judge's decision in a criminal case of domestic violence against a child, with the goal of analyzing how the judge's decision was consistent with Law Number 23 of 2004 concerning the Elimination of Domestic Violence and Qanun Number 9 of 2019 concerning the Implementation of Handling Violence Against Women and Children, while also taking into account moral aspects and benefits. This research is a doctrinal study that uses a case study approach to criticize judicial rulings. The objective of this approach is to examine court rulings, namely the Tapak Tuan District Court Judge's Decision Number 37/Pid.Sus/2020/PN. Ttn, in order to comprehend how the law is applied in actual circumstances. The data sources were obtained from court decisions, the Marriage Act, and several important regulations related to the problems of this study. To strengthen the analysis, this study also used several research results and several articles obtained from various journals, so that the analysis carried out was sharp and precise.This research argues that in Decision Number 37/Pid.Sus/2020/PN.Ttn, the judge's considerations are only formal, following what is in the law alone. In this decision, the judge seems to ignore the material aspect, as can be seen in the judge's considerations in the decision. This is in line with the opinion of Member Judge II and the concurring opinion of the panel of judges in the decision. However, decision Number 37/Pid.Sus/2020/PN.Ttn needs to be appreciated, realizing that the judge's task is very difficult because he not only considers legal interests in deciding the case at hand but also considers the sense of justice for the community to realize legal certainty.
{"title":"Looking for Legal Justice: Criticizing the Verdict of Nomor 37/Pid.Sus/2020/PN.Ttn Tapak Tuan District Court on Domestic Violence","authors":"Andi Hakim Lubis, Ariman Sitompul, Serimin Pinem, Rizkan Zulyadi, Fahrizal S. Siagian","doi":"10.32505/qadha.v11i1.8591","DOIUrl":"https://doi.org/10.32505/qadha.v11i1.8591","url":null,"abstract":"This study was conducted to examine a judge's decision in a criminal case of domestic violence against a child, with the goal of analyzing how the judge's decision was consistent with Law Number 23 of 2004 concerning the Elimination of Domestic Violence and Qanun Number 9 of 2019 concerning the Implementation of Handling Violence Against Women and Children, while also taking into account moral aspects and benefits. This research is a doctrinal study that uses a case study approach to criticize judicial rulings. The objective of this approach is to examine court rulings, namely the Tapak Tuan District Court Judge's Decision Number 37/Pid.Sus/2020/PN. Ttn, in order to comprehend how the law is applied in actual circumstances. The data sources were obtained from court decisions, the Marriage Act, and several important regulations related to the problems of this study. To strengthen the analysis, this study also used several research results and several articles obtained from various journals, so that the analysis carried out was sharp and precise.This research argues that in Decision Number 37/Pid.Sus/2020/PN.Ttn, the judge's considerations are only formal, following what is in the law alone. In this decision, the judge seems to ignore the material aspect, as can be seen in the judge's considerations in the decision. This is in line with the opinion of Member Judge II and the concurring opinion of the panel of judges in the decision. However, decision Number 37/Pid.Sus/2020/PN.Ttn needs to be appreciated, realizing that the judge's task is very difficult because he not only considers legal interests in deciding the case at hand but also considers the sense of justice for the community to realize legal certainty.","PeriodicalId":504558,"journal":{"name":"Al-Qadha : Jurnal Hukum Islam dan Perundang-Undangan","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-07-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141813453","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-07-22DOI: 10.32505/qadha.v11i1.8867
Syawaluddin Hanafi
The research aims to analyze changes to articles in Law Number 16 of 2019 concerning Marriage which are the result of revisions to previous provisions, namely Law Number 1 of 1974 concerning Marriage. This research is a juridical research by analyzing legal politics regarding changes in marriage law using a statutory approach, case approach, conceptual approach, and legal comparative approach. The results of this research are: First, the revision carried out by the government still leaves legal problems, this is based on the decision of the Constitutional Court in several judicial reviews of Law no. 1 of 1974 concerning Marriage. Second, the age limit regulated in Law no. 16 of 2019 concerning Marriage is not yet ideal and synergistic with other statutory provisions. Third, the purpose of the amendment to Law no. 1 of 1974 concerning Marriage is to reduce legal problems in society. On the other hand, the same problems still occurred when the previous provisions were implemented, such as the death rate for girls who married at a young age, the increasing number of requests for marriage dispensations, and the failure to achieve the marriages desired by law. However, changes to the marriage age limit provisions at least attempt to minimize cases of early child marriage in Indonesia.
{"title":"Legal Politics of Changes to Marriage Laws in Indonesia","authors":"Syawaluddin Hanafi","doi":"10.32505/qadha.v11i1.8867","DOIUrl":"https://doi.org/10.32505/qadha.v11i1.8867","url":null,"abstract":"The research aims to analyze changes to articles in Law Number 16 of 2019 concerning Marriage which are the result of revisions to previous provisions, namely Law Number 1 of 1974 concerning Marriage. This research is a juridical research by analyzing legal politics regarding changes in marriage law using a statutory approach, case approach, conceptual approach, and legal comparative approach. The results of this research are: First, the revision carried out by the government still leaves legal problems, this is based on the decision of the Constitutional Court in several judicial reviews of Law no. 1 of 1974 concerning Marriage. Second, the age limit regulated in Law no. 16 of 2019 concerning Marriage is not yet ideal and synergistic with other statutory provisions. Third, the purpose of the amendment to Law no. 1 of 1974 concerning Marriage is to reduce legal problems in society. On the other hand, the same problems still occurred when the previous provisions were implemented, such as the death rate for girls who married at a young age, the increasing number of requests for marriage dispensations, and the failure to achieve the marriages desired by law. However, changes to the marriage age limit provisions at least attempt to minimize cases of early child marriage in Indonesia.","PeriodicalId":504558,"journal":{"name":"Al-Qadha : Jurnal Hukum Islam dan Perundang-Undangan","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-07-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141815783","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This study aims to analyze the use of Van Dading deed in decision 901/Pdt.G/2023/PA. Tmg. Departing from the problem that the Van Dading Deed plays an important role in the settlement of joint property disputes in Indonesia, by providing legal certainty and an efficient settlement mechanism. This research is a doctrinal study with a case approach. This approach is used to analyze court decisions on Van Dading deeds. Legal materials are obtained from court decisions and to strengthen the analysis, this research also uses several scientific articles and research results related to this research issue in order to produce a sharp analysis. This study explores the legal position of Akta Van Dading in the Indonesian legal system, particularly in the context of joint property disputes. This deed, which is produced through mediation, has the same executorial power as a court judgment, ensuring that the agreement reached will be implemented without the need for additional litigation. A case example in this study is Decision 901/Pdt.G/2023/PA.Tmg, which demonstrates the effectiveness of Akta Van Dading in achieving an amicable and binding settlement. Through mediation facilitated by a mediator, the parties to the dispute were able to reach a fair and sustainable agreement. Thus, the Deed of Van Dading not only reduces the court's workload but also encourages faster settlements and lower costs. This research confirms the importance of Akta Van Dading as an essential legal instrument in achieving justice and legal certainty in the settlement of joint property disputes in Indonesia.
本研究旨在分析第 901/Pdt.G/2023/PA.Tmg.Van Dading契约通过提供法律确定性和有效的解决机制，在印度尼西亚共同财产纠纷的解决中发挥着重要作用。本研究是一项采用案例方法的理论研究。该方法用于分析有关范达丁契约的法院判决。法律材料来自法院判决，为了加强分析，本研究还使用了与本研究问题相关的几篇科学文章和研究成果，以便进行敏锐的分析。本研究探讨了 Akta Van Dading 在印尼法律体系中的法律地位，尤其是在共同财产纠纷中的地位。这种通过调解产生的契约具有与法院判决相同的执行力，可确保达成的协议得到执行，而无需进行额外的诉讼。本研究中的一个案例是第 901/Pdt.G/2023/PA.Tmg 号决定，该决定证明了 Akta Van Dading 在实现友好且具有约束力的解决方案方面的有效性。通过调解员的调解，争端各方达成了公平、可持续的协议。因此，"范达庭契约 "不仅减少了法院的工作量，还促进了快速和解，降低了成本。这项研究证实了 Akta Van Dading 作为一项重要的法律工具，在印度尼西亚解决共同财产纠纷中实现公正和法律确定性的重要性。
{"title":"The Position of the Van Dading Deed in the Settlement of Joint Property Disputes: Study of Decision 901/Pdt.G/2023/PA. Tmg","authors":"Dwanda Julisa Sistyawan, Muhammad Husni Abdulah Pakarti, Lexy Fatharany Kurniawan, Loso Judijanto, Zulkifli Makkawaru","doi":"10.32505/qadha.v11i1.8811","DOIUrl":"https://doi.org/10.32505/qadha.v11i1.8811","url":null,"abstract":"This study aims to analyze the use of Van Dading deed in decision 901/Pdt.G/2023/PA. Tmg. Departing from the problem that the Van Dading Deed plays an important role in the settlement of joint property disputes in Indonesia, by providing legal certainty and an efficient settlement mechanism. This research is a doctrinal study with a case approach. This approach is used to analyze court decisions on Van Dading deeds. Legal materials are obtained from court decisions and to strengthen the analysis, this research also uses several scientific articles and research results related to this research issue in order to produce a sharp analysis. This study explores the legal position of Akta Van Dading in the Indonesian legal system, particularly in the context of joint property disputes. This deed, which is produced through mediation, has the same executorial power as a court judgment, ensuring that the agreement reached will be implemented without the need for additional litigation. A case example in this study is Decision 901/Pdt.G/2023/PA.Tmg, which demonstrates the effectiveness of Akta Van Dading in achieving an amicable and binding settlement. Through mediation facilitated by a mediator, the parties to the dispute were able to reach a fair and sustainable agreement. Thus, the Deed of Van Dading not only reduces the court's workload but also encourages faster settlements and lower costs. This research confirms the importance of Akta Van Dading as an essential legal instrument in achieving justice and legal certainty in the settlement of joint property disputes in Indonesia.","PeriodicalId":504558,"journal":{"name":"Al-Qadha : Jurnal Hukum Islam dan Perundang-Undangan","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141825985","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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